Medical malpractice defense attorneys and their silent partner (the insurance carrier) facing high exposure in bad liability, high damage cases, such as this case, seem to point fingers to decrease or eliminate the risk of an excess verdict. Medical caregivers in New York City or Philadelphia, who are commonly consulted by New Jersey citizens in their New York or Pennsylvania offices for medical consultation and co-management, make an even more attractive target. After all, adding a doctor who rendered care out of state as a joint tortfeasor in a New Jersey case, in addition to the treating New Jersey defendants, would allow a jury to apportion fault to a party absent from the New Jersey case due to lack of jurisdiction. That could then prevent any recovery by the plaintiff of whatever percentage the jury apportioned against that absent alleged tortfeasor, and the New Jersey defendants would pay only their remaining percentage share of liability fixed by a jury verdict.
    
Only one prior New Jersey decision had allowed juror apportionment against an alleged joint tortfeasor not subject to jurisdiction in New Jersey: Kranz v. Schuss, 447 N.J. Super. 168, 171-172 (App. Div. 2016) (plaintiffs initiated two medical malpractice lawsuits, one in New Jersey and the other in New York, seeking damages for the same harm and settled with the New York defendant). However, as our Supreme Court recognized, that was only because plaintiff’s choice to split her cause of action and settle with the out-of-state tortfeasor deprived the New Jersey defendants of a later suit in New York for contribution. Similarly, all other cases where juror apportionment was allowed against an alleged joint tortfeasor turned on the fact that some affirmative act such as pre-suit or in-suit settlement with one treater or a procedural default by the plaintiffs let an alleged joint tortfeasor out of the case and thus prevented the remaining defendants from later seeking comparative fault allocation. Read the Spill opinion on page 21:

In other cases, the plaintiffs’ litigation strategies caused the defendants’ inability to pursue contribution from potential joint tortfeasors. But here, defendants are unable to make any such allegation. This matter is similarly devoid of any evidence of prejudice to the defendants.

  
In Spill v Markovitz, et. al., our Supreme Court confirmed that the exception stops there. Where a New Jersey medical malpractice plaintiff makes a recovery by settlement or verdict against out-of-state treaters, Kranz found that jury liability apportionment of fault against the out-of-state treater is equitably required to prevent a double recovery for the same injury. While not eliminating that single exception, both the Appellate Division and the Supreme Court in Spill held that otherwise there is no right to any comparative negligence jury apportionment to an alleged joint tortfeasor not subject to New Jersey jurisdiction. Instead, the New Jersey defendants are limited to a claim for contribution only after an adverse verdict and only if they then sue an alleged out-of-state joint tortfeasor in the foreign jurisdiction where such a suit can be brought.
         
What’s a plaintiff’s lawyer to do? At least for cases where all the New Jersey provider’s coverage is inadequate, they need to make the same evaluation they make as to suing other possible defendant treaters in New Jersey. As with too many cooks in the kitchen, too many different claims against multiple defendants can spoil what would otherwise be a clear winning malpractice claim. Also, each additional defendant disputes liability and causation at trial and each comes with another defense lawyer who also unfairly gets another six (6) jury challenges. So, the same reasons whether to split the cause of action and file a separate suit as to potentially liable treaters outside the jurisdiction of New Jersey exist where another treater is out of state. 
    
One final case-specific factual point deserves mention. Although it wasn’t up to the Supreme Court to decide it, in the Spill case, whether dressed up as a causation defense or as a bogus comparative fault allocation defense, the defense claim against one (1) of two (2) New York treaters was factually bankrupt. The defendant gynecologist and defendant anesthesiologist who performed an elective biopsy under anesthesia on a patient with long term lupus knew there were two (2) New York City specialists monitoring and managing her lupus. However, the New Jersey doctors failed to either get current blood work themselves or consult with the New York specialists and have them draw current blood work. That clear deviation actually subsumes any fault by the New York specialists because part of the New Jersey treaters’ malpractice was failing to consult the New York City specialists. If the New Jersey doctors had consulted the New York City specialists they would have learned what they should have already known: long term lupus patients are prone to fluctuations in potassium in their blood. Hyperkalemia or hypokalemia (elevated or decreased potassium) can cause fatal arrythmias when such patients are subjected to anesthesia. Thus, subjecting this patient to anesthesia without getting current lab values, and then discovering and correcting her hypokalemia before surgery, was blatant malpractice which caused a fatal arrythmia and the death of a young high-wage earning mother of two (2) small children. 

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Dennis M. Donnelly is a New Jersey personal injury attorney with more than 40 years of experience. He is a senior partner at The Donnelly Law Firm and recently became of counsel to the law firm of Sarno da Costa. He can be reached at DMD@njciviljustice.com.